Majority
p. 481State vs. Andrew Palese. (November 14, 1919.) Rice, J,. sitting. Court of General Sessions for New Castle County, November Term, 1919. Appeal from Municipal Court of City of Wilmington, No. 156; September Term, 1919.
Headnote
Criminal Law—State has no Appeal in Prosecution for Nonsupport.In a prosecution for nonsupport of wife or child under Rev. Code 1915, § 3035, providing an appeal shall lie on the part of accused, the state has no right of appeal from the decision of the court below, though under another section, if changed circumstances warrant it, the state has a right to ask the court making order to open the case for change or modification.
Frank L. Speakman, Deputy Attorney-General, and Henry R. Isaacs for State.
William H. Heald for accused.
Information against Andrew Palese, convicted of nonsupport by the municipal court. On appeal by the state.
Appeal dismissed.
The appeal coming on to be heard, counsel for accused moved for dismissal of the appeal on the ground that the state has no right of appeal.
Mr. Speakman:—Apparently, the law under which this appeal was taken does not give the state the right of appeal.
Under section 3035, Rev. Code 1915, it is provided that—
“Proceedings under sections two to fourteen, inclusive, of this chapter, may be instituted upon complaint made under oath or affirmation by the wife or child or children, or by any other person, against any person guilty of either of the above named offenses. The Court of General Sessions and the Municipal court for the city of Wilmington shall have original and concurrent jurisdiction in all cases arising under said sections, and, unless the accused shall demand a trial by jury, the trial shall in each case be by the court without a jury, subject to the right of the accused to appeal as provided by law in other cases: Provided, however, that the proceeding, under said section, in the municipal court for the city of Wilmington shall be without indictment by grand jury or trial by petit jury.”
p. 482
As the statute provides that an appeal shall lie on the part of the accused, and makes no provision relative to an appeal by the state, the court is of the opinion that the state does not have the right of appeal from the decision of the court below in cases brought under section 3035. Under another section of the statute, “the court * * * have the power to make an order, which shall be subject to change by the court from time to time, as circumstances may require.” Section 3037. Therefore, if changed circumstances should warrant it the state has the right to ask the court making the order to open the case for a change or modification of the order.
The appeal is dismissed.